Deportation of Afghan family ruled illegal

A family of Afghan asylum seekers sent back to Germany last month in a military aircraft were unlawfully removed from Britain, the High Court ruled yesterday.

The decision provoked an angry response from the Home Secretary, David Blunkett, who said it would be exploited by "every illegal immigrant and failed asylum seeker".

Mr Justice Scott Baker held that Farid Ahmadi, 33, his wife, Fariba, 25, and their two children, aged five and three, had the right to remain in Britain while their claims were considered by an independent adjudicator.

He stressed that his decision did not necessarily mean that they would be allowed to stay permanently.

At first, the judge ruled that Mr Blunkett should use his "best endeavours" to return the family to Britain to put their arguments to the adjudicator in person.

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But, after hearing that the Home Office was willing to pay witnesses' travelling expenses and set up a video-link so that the couple would not have to leave Germany for the hearing, he adjourned the case until this morning.

The family came to Britain on false names in June 2001 after complaining of their treatment in Germany. Supported by a network of family friends, they moved into a mosque at Lye, near Stourbridge, West Midlands.

Under laws passed in 1999, asylum seekers are entitled to stay in Britain if they are appealing against removal on human rights grounds.

Mr Blunkett decided that the Ahamadis' claim was "manifestly unfounded" and therefore excluded from this provision, but that argument was rejected by Mr Justice Scott Baker.

He said they had an arguable case under Article 8 of the Human Rights convention, which protects private and family life. There was evidence that Mrs Ahmadi was suffering from post-traumatic stress disorder and the judge said significant damage to a person's mental health was capable of being a breach of Article 8.

Mr Blunkett had said the family would be housed "in the community" on their return to Germany with "settled rights of residence" and full access to social and welfare provisions, but this turned out not to be so.

They had "tolerated" status rather than residence; they were living in a centre used for asylum-seekers; they had minimum social security benefits, and Mr Ahmadi was not allowed to work.

The judge said the medical evidence illustrated the serious concern there was "about the mental health of the mother and the children, and it emphasises the care that is required to ensure that the Secretary of State makes a decision that a claim is manifestly unfounded on a sound basis of fact". The family's supporters in Germany said they were desperate to get back home and to get the children back to school.

A spokesman for Mr Blunkett said: "It is the Home Secretary's view that this will create such a precedent that every illegal immigrant and failed asylum seeker will cite psychological damage to frustrate the proper operation of asylum laws.

"Before today, this case had already been looked at by six separate judges, all of whom decided that the Home Office had acted entirely within UK and international law."

The Home Secretary was "disappointed" with the judgment. The Government will seek leave to appeal at the adjourned hearing today.

Under the European Union's Dublin Convention, it is open to one member state to return would-be refugees to another EU country where they have already applied for asylum.

Home Office ministers fear the Ahmadi case will encourage "asylum shopping" when would-be refugees move from state to state looking for the chance to stay.

Mr Blunkett's Nationality Bill currently before Parliament is designed to restrict the opportunity for failed asylum-seekers to stay in Britain while their appeals are considered. Under the legislation, most appeals would have to be lodged abroad.

One official said: "It is not acceptable for asylum seekers to give up refuge in a safe country just because they want to come to the UK."